Tamawood Pty Ltd v Dunne - [2000] QDC 316

[2000] QDC 316

DISTRICT COURT OF QUEENSLAND

REGISTRY: BRISBANE

APPEAL NO: 2562 of 2000

Appellant:

TAMAWOOD PTY LTD

and

Respondent

DAVID TERENCE DUNNE

REASONS FOR JUDGEMENT

Delivered the 30th day of October, 2000.

1.          Pursuant to leave granted by His Honour Judge Wylie on 8th August, 2000 the appellant appeals against the “whole of the decision of the Queensland Building Tribunal dated 26th May 2000.”
2.          By that decision the Member of the Tribunal ordered:

1. Pursuant to section 95(4) of the Queensland Building Services Authority Act, Tamawood Pty Ltd be added as a party to the building contract between David Terence Dunne and Dario Saciolotto; and
2. Tamawood Pty Ltd shall pay David Terence Dunne the sum of $2,513.00.1
3.          The evidence before the Member showed that the respondent and his wife spoke with members of the appellant’s staff about their building a home in the style of a design produced by the appellant and known as “Mornington.” In particular the respondent and his wife spoke to one Roger Beale who is described as an “Executive Design Consultant.”
4.          It is not in dispute that these discussions took place, and that they lead ultimately to the respondent and his wife signing a building contract with a builder for the construction of a home. The appellant was not named as a party to that contract. The plans and specifications were, however, prepared by the appellant’s staff.
5.          As I have mentioned the style of home design which appealed to the respondent and his wife was known as the “Mornington.” The advertising material for this style of home clearly shows a gable over the front door. During the course of discussions plans were prepared which omitted the gable. The plans which formed part of the contract did not provide for a gable.
6.          The respondent’s case before the member was that he and his wife expected that a gable would be included. Mrs. Dunne gave evidence, which the Member accepted, that Mr. Beale in essence undertook to vary the building plans to restore the gable, but
failed to do so.
7.          The respondent then brought proceedings before the Queensland Building Tribunal in essence seeking damages for the failure to incorporate the gable in the building plans.
8.          I was told that the Tribunal ordered that the parties could not appear before it by counsel or solicitor.2 The respondent appeared in person, and the appellant was represented by Mr. D. Boundy who describes himself as “Corporate Counsel.”3 I was

told he is a solicitor of the Supreme Court of Queensland, although I was also told that
he lacked litigation experience.
9.          Both parties had prepared witness statements which were before the Tribunal. It is common ground that the respondent had required that the appellant produce its witnesses to be cross-examined.
10.        It seems to me that if the Member accepted the evidence of Mrs. Dunne then it was clearly open to her to find that there was a contract between the respondent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] QDC 316
Decision Date: 30/10/2000

CaseChat Overview and Summary

Tamawood Pty Ltd appealed against a decision of the Queensland Building Tribunal, arguing that the Tribunal's Member had failed to apply the principles of natural justice and misapplied her discretion in ordering that Tamawood be added as a party to the building contract between David Terence Dunne and Dario Saciolotto and ordering damages of $2,513.00. The Tribunal had found that there was a contractual relationship between Dunne and Tamawood, and that Tamawood had breached the contract and owed Dunne damages. The Tribunal had also ordered that Tamawood be added as a party to the building contract. The court examined whether the Tribunal Member had prejudged issues and failed to apply the principles of natural justice, and whether the order adding Tamawood as a party to the contract was a lawful exercise of the Tribunal's discretion. The court found that the Tribunal Member had not failed to apply the principles of natural justice and that her comments, while unfortunate, did not indicate that she had closed her mind to the evidence. The court also found that the order adding Tamawood as a party to the contract was a wrongful exercise of the Tribunal's discretion and should be set aside.

The appeal was allowed to the extent of setting aside the order adding Tamawood as a party to the contract, but was otherwise dismissed. The court found that the Tribunal Member's findings of fact could not be gainsaid, and that the award of damages could be supported as damages for breach of a delictual duty of care. The court also found that the Tribunal Member's finding that Tamawood had supervised the construction did not have any legal significance. The court ordered that the appeal be allowed to the extent of setting aside the order adding Tamawood as a party to the contract, but was otherwise dismissed. The court reserved the issue of costs for later determination.

Orders